Cook v. Ganey

Supreme Court of South Carolina

Cook v. Ganey

3 S.C.L. 377

DecidedApril 15, 1804

StatusPublished

This text of 3 S.C.L. 377 (Cook v. Ganey) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. Ganey, 3 S.C.L. 377 (S.C. 1804).

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Opinion

By the court.

The provision made by the act of 1769, em. powering the judges to determine without a jury in a summary [378]*378Wa^ on Pet^'ot1’ aH causes cognizable by them in the circuit courts, to any sura not exceeding £'¿0, steiling, except wheie the title of lands comes in question, however comprehe stye it may seem to be, cannot be extended to embrace a case of foreign attachment. The mode of service is particularly specified, and required to be by serving a copy of the petition, <fcc. personally, or by leaving the same at the delendant’s usual and notorious place of abode. P L. 27 0. This shews that cases of attachment were not in contemplation : and the provision being contrary to the rules of the common law, must be construed strictly. The principal object of the provision was expedition : to expedite the recovery of small debts, and to avoid delay, as well as expence. But this end cannot be advanced by proceeding by petition in attachment cases : for where the absent debtor has no wife or attorney known in the State, notice must be given by publication in the newspapers once every three months, during a year and a day, before judgment can be had. And besides, the attachment act of 1744, P. L. 188, expressly requires the plaintiff to file his declaration in two months after the return of the writ, unless, &c.; and to serve the defendant’s wife or attorney, if known in the State, with a copy of the declaration, &c. ; and to make oath, at the dme of filing his declaration, to the debí or sum demanded, &c. If the declaration were to be dispensed with, other requisites might, that are very proper and useful to be observed, and much uncertainty would result. This innovation, therefore, cannot be safely, sanctioned, and the decree must be set aside, and the proceedings quashed for irregularity.

Present, Grimed, Waties, Johnson, Trezevant, and Brevard, Justices; Bay, J. absent.

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By the court.

The provision made by the act of 1769, em. powering the judges to determine without a jury in a summary [378]*378Wa^ on Pet^'ot1’ aH causes cognizable by them in the circuit courts, to any sura not exceeding £'¿0, steiling, except wheie the title of lands comes in question, however comprehe stye it may seem to be, cannot be extended to embrace a case of foreign attachment. The mode of service is particularly specified, and required to be by serving a copy of the petition, <fcc. personally, or by leaving the same at the delendant’s usual and notorious place of abode. P L. 27 0. This shews that cases of attachment were not in contemplation : and the provision being contrary to the rules of the common law, must be construed strictly. The principal object of the provision was expedition : to expedite the recovery of small debts, and to avoid delay, as well as expence. But this end cannot be advanced by proceeding by petition in attachment cases : for where the absent debtor has no wife or attorney known in the State, notice must be given by publication in the newspapers once every three months, during a year and a day, before judgment can be had. And besides, the attachment act of 1744, P. L. 188, expressly requires the plaintiff to file his declaration in two months after the return of the writ, unless, &c.; and to serve the defendant’s wife or attorney, if known in the State, with a copy of the declaration, &c. ; and to make oath, at the dme of filing his declaration, to the debí or sum demanded, &c. If the declaration were to be dispensed with, other requisites might, that are very proper and useful to be observed, and much uncertainty would result. This innovation, therefore, cannot be safely, sanctioned, and the decree must be set aside, and the proceedings quashed for irregularity.

Present, Grimed, Waties, Johnson, Trezevant, and Brevard, Justices; Bay, J. absent.

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Bluebook (online)

3 S.C.L. 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-ganey-sc-1804.